Standing Committee G

[Mr. Peter Pike in the Chair]

Education Bill

Clause 155 - Unregistered schools

Amendment proposed [this day]: No. 554, in page 90, line 8, at beginning insert: 
'Save as under section [New Independent Schools].'—[Mr. Brady.]
 Question again proposed, That the amendment be made.

Andrew Turner: I welcome you back to the Chair, Mr. Pike. I trust that you have lunched well. I had Cumberland sausage and red onion marmalade, which I strongly recommend.
 I hope that hon. Members will forgive a certain disjunction between what I say now and what I said this morning. We discussed the fact that people choose different sorts of education. Sometimes we may think that they are bonkers, but they are simply choosing a particular type of education. I appreciate that the Government want to regulate in such areas to minimise the risk for parents and students. However, in a wholly regulated system there is a danger that new ideas may not be developed. My amendment No. 553 sets out certain conditions under which those who choose schools that lie outside the framework of regulation may continue to do so. The school should make it clear at all stages that it is unapproved and has not been inspected or registered to meet the standards of the Department for Education and Skills or the National Assembly for Wales. I tabled the amendment not because those who choose that kind of education are right to do so, but because they have a right to do so. They have a right to take responsibility for their children's education and to do the best for their children. 
 New clause 9 relates to the creation of new independent schools. As my hon. Friend the Member for Altrincham and Sale, West (Mr. Brady) baldly said, anyone who runs a school that is not registered is guilty of an offence. I explained that it is difficult to see how it is possible to establish a new independent school in those circumstances. We therefore propose three simple exclusions from that bald statement of an offence. First, someone will not commit an offence if they run a school before the chief inspector has undertaken his inspection and the registration authority has determined whether to register the school. Secondly, someone will not commit an offence within 12 months of the school's establishment. I exclude the possibility of a new school having the same management or premises as a former school that was refused registration or that was removed from the register. Thirdly, someone will not commit an offence if the proprietor changes, unless the new proprietor has, within the previous five years, 
 been a proprietor of a school that was removed from the register. 
 I am concerned that it might be possible for those who are already in the marketplace to work with the Government to keep newcomers out. That happens quite often in situations where the Government are considering introducing regulation. We are familiar with this practice in a range of retail sectors and if we are not careful, we will also be familiar with it in regard to schools. 
 The present providers of independent schools should not be the only ones providing for the future and without the amendment, it might be possible to keep new entrants out of the market. Nor do I believe that independent schools necessarily provide good value for money at the moment. Indeed a report by Dr. John Mark, entitled, ''Standards in Spending—Dispelling the Orthodoxy'', demonstrates very well that 
''although independent schools are good at providing higher standards, they do not necessarily, grade by grade, represent good value for money in crude terms.''
 That is not to say that parents are wrong to choose to spend their money in this way, nor that it is wrong for money to be spent in this way. If parents choose to spend their money on independent schools, it may be that they are buying something extra, other than additional grades. However, my concern is that the Bill provides no opportunity for new independent schools. 
 Finally, I commend to the Committee the words of Sir Osbert Sitwell, who, when asked where he was educated, wrote in Who's Who, ''during holidays from Eton.'' That is of course one of the most important components of any child's holiday. I understand perfectly why parents choose to spend money to send their children to independent schools, secure in the knowledge that the bulk of their education is being provided outwith those establishments.

Ivan Lewis: I welcome you back to the Chair, Mr. Pike. I trust that you have had a good lunch too.
 A number of important and interesting points have been made about the amendments, but in general there is a significant difference of opinion on these issues. I will try to address the points that have been made by the hon. Member for Altrincham and Sale, West and the hon. Member for the Isle of Wight (Mr. Turner). 
 One of the first points that the hon. Member for Altrincham and Sale, West made related to the criminal offence element of running an independent school on a non-registered basis, outside legislative requirements. The Bill does not create a criminal offence, because it is already an offence to run an independent school that is not registered or provisionally registered. The wording in the Education Act 1996 is very similar to the wording in this legislation, which talks about being guilty of a criminal offence in those circumstances.

Graham Brady: Perhaps I should have referred to the ''maintenance of'' a criminal offence, rather than the ''creation of'' one. I was concerned about the point at which a
 person's action becomes a criminal offence, rather than the fact that there should be a criminal offence. I hope that the Minister will address the more substantive point that I raised about the circumstances in which there may be difficulties in registration, and whether flexibility should be allowed.

Ivan Lewis: The hon. Member for the Isle of Wight asked how one could inspect a school and decide whether it was fit for registration before the school was actually open. Clearly, the existing situation would prevail. Prior to registration, a school has to demonstrate that it is fit for purpose. There is a range of issues to consider, including the quality of the physical environment, the staffing arrangements and the proposed curriculum and a range of objectively reasonable measures, with which the Independent Schools Council would have no problem. The provision is entirely reasonable. It is not about keeping new players out of their market. I do not accept that. A number of objective factors, such as the preparations, plans, structure and leadership, can reasonably be considered before a school is due to open to see whether it is fit for the purpose and can get up and running once it is registered. As I said, I do not accept the hon. Gentleman's point.
 The point about a criminal offence is relatively straightforward. If a potential proprietor of a school, whether an individual or a company, is aware of the law but chooses to set up and run a school outside the legislation that the House has approved, they will be breaking the law. Surely one of the first issues that a responsible adult seeking to set up a school should address is the legislative regulatory framework surrounding that decision. They will be perfectly aware that starting to run a school pre-registration is a criminal offence and will know the consequences of so doing. There is no attempt to mislead people. Frankly, anyone who does not check the legislative requirements is not fit to run a school.

Andrew Turner: The Minister referred earlier to provisional registration. Section 465 of the 1996 Act provides for provisional registration, but I see no such provision in the Bill.

Ivan Lewis: I can confirm that. The Government do not believe that provisional registration works. Indeed, a range of instances shows how it has been abused and how provisional registration may be granted, but then matters drag on. It is then much more difficult to close a school because of the disruption to pupils and employees. Surely the sensible way to proceed is to ensure that, from day one, everyone is clear about the rules of the game. A proprietor must meet certain standards provided for in legislation. That concept is not difficult to understand; it is quite straightforward. An individual who tries to get round the legislation in the way that I have described is not fit to be running a school in the first place.

Graham Brady: The Minister has referred to provisional registration not working. It may be convenient for the Committee if he gives some examples.

Ivan Lewis: I do not have examples to hand. However, I am willing to write to the hon. Gentleman.

Andrew Turner: The Minister has referred to achieving standards. I think that I am correct in saying that a school that does not meet achieve the standards prescribed under clause 153 will not be fit for registration. Again, I thank the Minister for the information on the clause that he circulated, which runs to 12 fairly closely typed pages. It states:
''We envisage that the regulations will provide that the teaching in independent schools must enable pupils to learn and fulfil their potential''.
 Teachers will meet the objectives if 
''they show good understanding of the subject matter being taught, in the way they present and discuss it and develop essential skills''
 and if they 
''show good understanding of the aptitudes and needs of the pupils''.
 How can they understand the needs of pupils if there are no pupils because the school has not opened? 
 The objectives will also be met if 
''lessons are well planned, appropriate teaching methods are deployed''
 and 
''pupils are well managed''.
 The Minister has been trying to respond to the question about how a school that does not exist can be inspected, but he has not yet done so successfully.

Ivan Lewis: The criteria used in the registration process are applied in a common-sense way. There is no precedent of an inspector making an unreasonable judgment about fitness for purpose, for example, because the school is not yet up and running. No one in the independent sector is claiming that.
 No one on the Committee would expect a school to open if the premises did not meet basic health and safety standards. Someone seeking to set up a school should be able to demonstrate to an inspector that the curriculum that they propose to teach is adequate. They should be able to demonstrate satisfactorily that there are adequate provisions for staff checks, police checks and accountability. The issue is not as complex as the hon. Member for Isle of Wight seeks to make it, unless he wishes to open the door to people who, for a variety of reasons, are not fit to run schools in the independent sector. I am sure that he does not intend that. As the Independent Schools Council and others have said, that would undermine the reputation and standards within the independent sector. I cannot agree with the hon. Gentleman's concern.

Andrew Turner: I am not seeking to prolong the debate unnecessarily, but clause 156(4) states:
''The Chief Inspector shall then inspect the school and report to the registration authority on the extent to which the independent school standards are met, and are likely to continue to be met in relation to the school.''
 Similarly clause 157(1) states: 
''Where a school has been inspected under section 156, the registration authority shall, taking into account—
(a) the report of the Chief Inspector under that section, and
(b) any other evidence relating to the independent school standards,
determine whether those standards are met, and are likely to continue to be met''.
 The clauses are in the present tense. If the Minister means what he says, they would have been better in the future tense as well.

Ivan Lewis: It may help the hon. Gentleman—or it may not—if I say that we intend to table an amendment to clause 153 on Report. It will ensure that the powers in the Bill are broad enough to allow us to set standards. There has been significant consultation with the independent sector. We are able to introduce the Bill, which represents a consensus on the issue, because the independent sector accepts that it offers a reasonable way of making judgments. The hon. Gentleman's argument is that people in existing schools do not welcome competition from outside, but that is not a reasonable premise.
 The hon. Gentleman's comments about the Summerhill case raised an interesting and important issue. The Ofsted report listed six separate complaints. The school accepted three of them but appealed to the independent schools tribunal on the other three. I shall briefly discuss the complaints about which there was not agreement. That may help us define ''reasonable'' in the context of inspectors making decisions in sometimes difficult circumstances. 
 Complaint 2 was that there were insufficient working and accessible toilets for the numbers and gender of pupils and staff. At the beginning of the tribunal, Summerhill demonstrated that it had repaired the defective toilets and installed additional toilets to meet the requirements. On that basis, it was agreed that the complaint should be annulled: a common-sense response to concerns that were expressed, which Summerhill may have disputed. However, it acknowledged the problem and put it right. 
 Complaint 4, the second complaint about which there was a difference of opinion, expressed the need to improve teaching and learning inside and outside the classroom. There was concern about poor attendance at lessons. The third complaint was about improving assessment. As a result of those complaints and discussion at the tribunal, there was a settlement. At the end of that process, the agreed settlement included measures that tackled those issues. The school agreed to provide a stimulating learning environment and timetabled lessons, including suitable class-based lessons and self-supported study programmes. It agreed to make a more systematic assessment of pupils' learning progress and needs. As part of the settlement, the school agreed that it had significant progress to make in the areas that the inspector identified as problematic. 
Mr. Turner rose—

Ivan Lewis: I have not finished. I shall consider giving way to the hon. Gentleman when I have. Ofsted felt that it was desirable that Summerhill should encourage pupils to attend lessons or undertake suitable private study, not force or manipulate them into doing so. That was the basis of the agreement, and
 the school agreed to follow and implement the terms that it set out.

Andrew Turner: The Minister said that the school should ''provide'', whereas the statement said that the school should ''continue to provide'', which does not involve an admission that the school was not providing a stimulating learning environment. His quotation suggests that the school was not providing such an environment.

Ivan Lewis: That is the last time that I shall encourage the hon. Gentleman to intervene. The discussion proved that the inspection process is beneficial: having disagreements, resolving which decisions taken by the inspectors are reasonable and seeking to achieve a practical and sensible way forward in a tribunal. That shows the benefits of an even-handed and fair approach to inspection and the tribunal.
 In later clauses, which refer to proposed changes in some contentious areas, we will go one stage further and allow more discretion so that, in difficult circumstances, tribunals are not required to find in favour of the school or the inspector. In some circumstances, it may be appropriate to seek the middle ground, and those clauses are designed to enable tribunals to do that. 
 We seriously disagree with the Opposition amendments. It is in the interests of children, parents and those working in the independent sector to put in place requirements from day one that minimum standards must be achieved before a proprietor is allowed to open an independent school. The regime proposed in the legislation is reasonable. It is cynical of the hon. Member for Isle of Wight to suggest that the existing independent schools might go along with it because they do not want competition. If the independent schools thought that the regime was a threat to the way in which they seek to educate the children who attend their schools, they would have made a hue and cry about the Government seeking to interfere in their independence by over-regulating and removing parents' right to make an honest choice to educate their children in the independent sector. The independent sector is not making that case in the context of the legislation. I therefore ask the hon. Member for Altrincham and Sale, West to withdraw the amendment.

Graham Brady: The debate has been interesting and worth while. The Minister explained why the Government chose to remove the terms of provisional registration that were in the previous legislation, although his explanation was based on examples where provisional registration had palpably failed but which he could not give to the Committee. We look forward to receiving those examples in writing, as he promised.
 Late in the debate, the Minister sought to reassure the Opposition by pulling out of the hat the announcement that a Government amendment will be tabled on Report. It would be so much better if Ministers did that first. The Minister went on at some length about discussions that he and his colleagues had had with independent schools and the bodies that 
 represent them. If only Ministers would understand that part of our constitutional process sits alongside consultation with outside bodies. That is the Committee stage, in which we are currently engaged. It would be nice if Ministers were occasionally to volunteer information without it being pulled out of them against their will. 
 I thank the Minister for his reassurance, and for his indication that the clauses that we have not yet discussed provide for greater flexibility. That was the only matter that we sought to explore in tabling the amendments, and I suspect that we could have dealt with it more quickly and concisely if the Minister had responded earlier. We have not yet seen the Government's proposed amendment to clause 153. Will the Minister give members of the Committee some more detail about the amendment, perhaps in writing? He gave the Committee some reassurance, however, and I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 155 ordered to stand part of the Bill.

Clause 156 - Applications for registration

Graham Brady: I beg to move amendment No. 534, in page 90, line 35, after 'proprietor', insert 'or other appropriate authority.'
 This is another amendment that seeks to offer the Government more flexibility. If Ministers can assure Opposition Members that the amendment is unnecessary, we will be happy to withdraw it. Clause 156(1)(b) makes it clear, with no apparent flexibility, that an application to enter an independent school in the register must 
''be made to the registration authority by the proprietor of the school in the prescribed manner.''
 It is not difficult to envisage circumstances in which the proprietor of a school may be unable to do that. He may have fallen under the famous Clapham omnibus and be in no position to make representations or applications to anybody, appropriate or otherwise. 
 Equally, it may be that the proprietor of a school is in a state of health, whether it is permanent, chronic and progressive or temporary but severe, that prevents them from taking this sort of action. It is even conceivable that when the proprietor of the school contemplates the appropriately strict terms of registration, he looks at himself and even though he happens to have been running a good school, doing a good job for the pupils within it, says, ''I am not going to be considered, under the terms of the legislation, a fit person''. He may do a runner. The school may continue to operate in an effective manner without its proprietor, but there will be no obvious and immediate route to registration. 
 There may be a number of circumstances that even the Minister with his legendary perspicacity cannot 
 foresee in which the proprietor is unable to apply for registration himself. In seeking to insert the phrase ''or other appropriate authority''—we are open to persuasion as to whether this is the appropriate route—I would like to hear from the Minister what flexibility or alternative route he believes is available in the Bill for circumstances in which the proprietor is unable to take the necessary steps. Might it not be appropriate for a governing body or a board of trustees, for example, to apply for registration? We look forward to the Minister's response, and I hope that he can reassure us that the Bill allows for some flexibility to deal with unforeseen circumstances.

Ivan Lewis: If somebody fell under a Clapham omnibus, they would be unlikely to be able to pursue their application, and if somebody died the relevant authorities would have to be informed immediately that there was going to be a change and the proprietor was no longer there.
 We are talking about an application for registration and the proprietor could be an individual or a company. It has to be right that that individual or the directors of that company have to apply for registration. 
 The hon. Member may be referring to the fact that in many cases, lawyers, accountants and other such professionals have to do the processing, administration and a lot of the background work. Everyone on the Committee accepts that that is legitimate support for an individual or a company that was seeking to open a school. However, application for registration has to be fully the responsibility of either the individual proprietor or the directors of the company that is the proprietor. There can be no ambiguity about who is ultimately responsible for applying. If an application were made by someone else and it was accepted—if we had the flexibility that the hon. Gentleman seeks—we could enter into all sorts of litigation about who is or is not responsible. 
 The hon. Gentleman has not presented one scenario that justifies his amendment. The Clapham bus was one; the death of the proprietor was another. He did not refer to someone being admitted to prison—the word ''admitted'' is probably not appropriate. He gave the example of somebody who was chronically, or terminally, ill. When we are developing legislation, we have to use an element of common sense. I do not imagine that someone who was terminally ill would want to put in an application to start a new school. 
 There is an even more fundamental issue, if we are going to get silly about this. If someone is not in a fit state to put in an application because they have a chronic health problem, they are not a fit person. If their health was so bad that they could not make intellectually cogent decisions, they would not be in a fit state to put in an application. When the inspection came, prior to day one—the hon. Member for the Isle of Wight does not want us to have the inspection prior to day one—it would be patently clear that the proprietor is so ill that they cannot even make the application. Yet the hon. Member for Altrincham and Sale, West wants us to accept an application made on that person's behalf and allow the person to take 
 responsibility for a school. I am not being disrespectful to the hon. Gentleman, but surely common sense should prevail in legislation.

Graham Brady: The Minister's response is hopelessly inadequate. The one thing that legislation cannot exhibit is common sense. Common sense can come only through the interpretation of legislation, and that is precisely what the Committee is trying to draw out from Ministers.
 The Minister can sit there, as I am sure that Ministers for centuries have done, considering Bills and claiming that it is not possible for a set of circumstances that he has not foreseen to arise. Like Ministers over the centuries, he will be proved wrong. It would be helpful to the Committee and to those who, through the courts or otherwise, may have recourse to our deliberations in interpreting this legislation to know what the Government's thinking is. 
 So far, it seems that the Minister believes that if the proprietor of a school becomes incapacitated for whatever reason, or indeed dies during the process, no other body will be considered fit to take the application forward. That leaves open the possibility that there will be an indeterminate period while the estate is being administered in the event of a death or while somebody is ill and incapacitated during which no further steps can be taken. 
 I ask the Minister to be slightly less flippant and to attempt to engage with the point. At some point in the future, should the Bill become law, a situation may arise that he does not envisage today. The legislation will have to be interpreted by the courts or otherwise. It would be helpful if the Minister would give a more considered response.

Ivan Lewis: It was not a flippant response. When I use the word common sense, which used to be a term that was endearing to the former Leader of the Opposition, I did so in the context of an application for registration as an independent school. It is surely common sense that the person or the corporate entity required to make the application is either the individual or the corporate entity that seeks to run that school. I do not think that that is complicated.
 It is very dangerous to answer no to any question in this context. I envisage no circumstances in which it would be unreasonable, impractical or impossible to require the person or corporate entity that wants to create a new independent school to sign on the dotted line of the application. I will no doubt regret this at some stage in the future, but I ask the hon. Gentleman, on that basis, to withdraw the amendment.

Graham Brady: All that Opposition members of the Committee seek to do is to minimise the number of occasions when Ministers regret their actions in introducing legislation. The Minister says that he knows what he is doing, so we will leave him to face the consequences. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 156 ordered to stand part of the Bill. 
 Clause 157 ordered to stand part of the Bill.

Clause 158 - Changes to registered details

Graham Brady: I beg to move amendment No. 545, in page 91, line 28, at beginning insert
'Save as under sub-sections 158(8) and (9)'

Peter Pike: With this it will be convenient to take the following amendments: No. 546, in page 92, line 13, at end insert—
'(8) Subsection 158(1) shall not apply—
(a) for twelve months following the death of a proprietor; 
 (b) for twelve months where a school has changed address in circumstances which could not reasonably have been foreseen by the proprietor;
(c) where a change referred to in subsection 156(2)(a) to (c) would not constitute a significant alteration to the school;
(d) where the registration authority has received an application under section 150(3) proposing a material change but the application has not been determined in time for that change to take effect.'.
 No. 547, in page 92, line 13, at end insert— 
'(9) Where other evidence (under subsection (7) (b) above) has been taken into account, until the applicant has had the opportunity to consider that evidence and the registration authority has considered any representations made.'.

Graham Brady: I hesitate because these amendments also deal with what might be regarded as the unforeseen, which the Minister refuses to accept as a possibility. The clause states that
''The registration authority may remove a school from the register if . . . there is a material change in relation to the school, and . . . the change has not been approved''.
 We seek to probe the Minister on whether additional flexibility is required in the legislation. We seek to allow a period of grace after unforeseen circumstances such as the death of the proprietor or a change of address of the school. One instance that comes to mind is a school by the coast that is forced to move to other premises as a result of coastal erosion. 
 No member of the Committee is old enough to remember directly, but we know from our knowledge of history and conversations with others that many independent schools were forced to relocate in the war. Only recently a constituent told me how her school was forced to relocate into the Chatsworth estate, not a fate for which we need show huge sympathy, as I imagine that it was a rather pleasant place be. In a more mundane state of affairs, the delay in registration or in processing a change may be the fault not of the proprietor but of the registration authority. There may have been an undue delay in dealing with an application. A school may not be registered or it may be deemed that appropriate action has not been taken. I do not intend to delay the Committee unduly in this regard, but I ask for the Minister's thoughts on the matter.

Andrew Turner: I support the comments made by my hon. Friend the Member for Altrincham and Sale, West. The amendments are not as fanciful as hon. Members may have thought. In the past 12 months two hotels in my constituency were closed as a result of cliff falls and one large, highly commodious house which would have been suitable for a preparatory school was closed by order of the authorities because
 of land slip. None of those buildings happened to contain schools, but they might have done. We have all seen the film ''Blue Murder at St. Trinian's'', in which a school was evacuated in wartime in circumstances that could not reasonably have been foreseen by the proprietor.
 My hon. Friend dealt with paragraph (d) of amendment No. 546, and I should like to refer briefly to paragraph (c). I am concerned that clause 156(2) is so tightly drawn that an application would be required even for an insignificant alteration, such as the age range of pupils or whether a school is for male or female pupils or both. We have all heard the case of the housemaster's daughter who, for convenience, was educated in a boy's school from time to time. That should not require an application under clause 156(2)(c). In the previous legislation—I am not sure whether it was amended by the School Standards and Framework Act 1998—it was recognised that the change in character of a maintained school had to be significant before the Secretary of State got involved. We should not impose a more onerous requirement now. 
 Amendment No. 547 refers to an important question of natural justice. Subsection (7)(b) allows the registration authority to take into account not only the inspector's report but 
''any other evidence relating to the independent school standards'',
 and makes no provision for the proprietor to see or comment on that evidence before the Secretary of State or the National Assembly makes a decision. The importance of amendment No. 547 is that it would provide that a school could not be removed from the register under subsection (1) if the evidence for doing so included any evidence under subsection (7)(b) until the applicant had the opportunity to consider the evidence and the registration authority had considered any representation made. That is an important question of natural justice and should be taken into account in the Bill.

Ivan Lewis: Some of the scenarios raised are potentially reasonable. In most circumstances, it is reasonable to ask independent schools to inform the relevant authority in advance of making significant changes. However, we accept that there will be unforeseen circumstances in which that would be not only difficult but impossible. In such cases, there will be a clear understanding that information should be provided as soon after the changes as possible.
 The obvious example is the reference by the hon. Member for Altrincham and Sale, West to the proprietor of an existing school passing away. It would take days to provide the information, but it would not take 12 months because a new proprietor would soon have to assume responsibility for the school. In those circumstances, it is reasonable to say that the relevant authority should be informed as soon as possible. That should not be a problem for any school that has been up and running for some time. 
 It is important also to note that the legislation makes it clear that the registration authority is not obliged to remove a school for failing to provide relevant material. Indeed, it is clear that discretion is available and should be used—I know that hon. Members will not like this expression—in a common-sense way. The hon. Member for Altrincham and Sale, West asked for evidence from me; I should be interested to see evidence that any registration authority proposed to remove a school for not providing adequate information in one of the unforeseen scenarios that were described by Opposition Members. 
 The legislation will create a logical, progressive and deliverable process. In advance, independent schools should make the authority aware of material changes that they are planning to make. If that is an unreasonable expectation, they should make the authority aware of those changes as soon as possible. In any other dispute, the authority has the power of de-registration, but it must use that with discretion because it is open to legal challenge. If a registration authority sought to remove a school in circumstances such as those described, most courts would find that to be outside the terms of the legislation. 
 I hope that hon. Members recognise that we are providing for flexibility, discretion and a staged approach. The legislation anticipates normal and special circumstances and allows for a sensitive, flexible response. I ask the hon. Member for Altrincham and Sale, West to consider withdrawing their amendments.

Graham Brady: If and when a court considers those questions, it will find it helpful that the Minister put on the record his assurance that he intended that discretion should be used.

Andrew Turner: I am sure that the court will, but why should it have to? Why should the proprietor of an independent school be forced to undergo the same time-consuming and expensive procedure experienced by the people who sold unpasteurised cheese in Scotland? That process destroyed their business and their lives. In this case, the education of many children and many jobs would be destroyed because the Minister insists on including a huge range of unnecessary discretion.

Graham Brady: My hon. Friend is right. If Ministers were prepared to include more detail in the Bill, it would lessen the likelihood of future legal challenge. He made a valid and important point, which I fear has fallen on deaf ears. We hope that the registration authority will take the Minister's assurances as a warning. In that context, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 158 ordered to stand part of the Bill. 
 Clause 159 ordered to stand part of the Bill.

Clause 160 - Inspections: supplementary

Ivan Lewis: I beg to move amendment No. 276, in page 92, leave out lines 38 to 43 and insert:
''(2) If the inspection is conducted by a registered inspector—
(a) he may, by agreement with the Chief Inspector, be assisted by the Chief Inspector, and
(b) he may be assisted by such one or more persons enrolled in the list kept under paragraph 3A of Schedule 3 to the School Inspections Act 1996 (c.57) as he may determine, subject to paragraph 3(5) of that Schedule and subsection (3) below.
If the Chief Inspector so requires, a registered inspector shall be assisted by at least one person enrolled in the list referred to in subsection (2)(b)—''.

Peter Pike: With this it will be convenient to discuss Government amendment No. 277.

Ivan Lewis: It would be minimalistic to describe the amendments as technical, but if I may continue the theme of common sense, they represent a sensible way forward. We intend to allow Her Majesty's inspectorate to be part of a team led by a registered inspector in order to increase flexibility in the organisation of inspections of maintained schools in the same way that we propose elsewhere in the Bill. The responsibility for the composition of the team will remain with the registered inspector. The amendment also removes the reference to the chief inspector being assisted by lay persons and team inspectors, as that power is in schedule 3 of the School Inspections Act 1996.
 On amendment No. 277, it is important that people who have been appointed to assist a registered inspector in inspecting an independent school have a legal right of access to the school premises. They must also be able to inspect and copy any records that contain information required for the purposes of the inspection, and the amendment ensures that. 
 I hope that members of the Committee will agree to amendment No. 276. 
 Amendment agreed to. 
 Amendment made: No. 277, page 93, line 9, leave out: 
'and any person monitoring it,'
 and insert: 
'any person assisting him pursuant to subsection (2) or (3) and any person monitoring the inspection'.—[Mr. Timms.]

Graham Brady: I beg to move amendment No. 548, in page 93, line 24, at end insert:
'save that no such fee shall unreasonably exceed the cost of conducting the inspection.'
 The amendment is a modest attempt to improve the Bill by ensuring some natural justice in the drafting of an important provision. Clause 160(9) makes it clear that 
''The proprietor of the school shall pay the Chief Inspector, in respect of the inspection, a fee of such amount, and by such time, as may be specified in or determined under regulations.''
 The amendment seeks to stipulate that the fees should not unreasonably exceed the cost of carrying out the inspection. I hope that the Minister will agree that that is unexceptionable, and that it is entirely reasonable that where the school must cover the cost of its own inspection, the Bill should limit such cost to a reasonable amount that is related to the costs incurred by the inspector. It would be difficult to justify the chief inspector seeing a means of raising 
 revenue by charging a premium for inspection of independent schools. I trust that the Minister will reassure me that that is not intended, and that the Government will accept that the wording of subsection (9) could be tightened up to provide some comfort and certainty to independent schools.

Ivan Lewis: I can reassure the hon. Gentleman that the regime will operate a sliding scale depending on the size of the school. The regulations will make it clear that the costs are not expected to be prohibitive.

Graham Brady: The Minister's comments have been helpful. He expects that costs will not be prohibitive. Will he go further and make it clear that the fees will relate to the actual cost of undertaking the inspection?

Ivan Lewis: I can give the hon. Gentleman that assurance.

Graham Brady: With that assurance, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 160, as amended, ordered to stand part of the Bill.

Clause 161 - Failure to meet standards

Ivan Lewis: I beg to move amendment No. 278, in page 93, leave out line 43 and insert
'before the date specified in the notice (or such later date as the authority may specify after service of the notice)'.

Peter Pike: With this it will be convenient to take Government amendments Nos. 279 to 283.

Ivan Lewis: It is important to explain the purpose of the amendments. If an independent school is found to be failing but there is not a risk to pupils' welfare, the school will be required to provide an action plan showing how and when it will remedy the relevant deficiencies. Failure to do so could result in an order removing the school from the register of independent schools, or an order imposing a limitation on its operation.
 Amendment No. 278 seeks to allow the Secretary of State sufficient flexibility to extend the time permitted for the school to draw up an action plan if it is considered appropriate to do so. There may be a situation, for example—we have described scenarios frequently during the proceedings—in which the management of a failing independent school changes during the time specified for the production of an action plan. Reasonably, the new management might ask for an extension of time to get the action plan right. The Secretary of State would want to respond positively to such a request. 
 Amendments Nos. 279 to 283 provide a useful improvement to the powers in the Bill. They allow the Secretary of State and, on appeal, the tribunal another option in deciding on an application from a school to remove an order limiting its operation. The amendment allows the limitation to be varied if it would be appropriate to do so in the light of changed circumstances at a school. At present, the clause is unnecessarily restrictive in limiting the Secretary of 
 State to an option of either revoking or upholding the original order. We feel that it is important to have more flexibility in such circumstances. 
 For example, it would be useful if an order preventing the use of unsatisfactory accommodation in two buildings had been served on a school. The school may decide to bring one building up to the required standard but permanently discontinue the use of the second building. A variation order would allow the school to bring only one building back into use. On balance, it is sensible that the Secretary of State should have the flexibility to make a variation order in such circumstances. 
 I hope that members of the Committee will agree that the amendments should be accepted and incorporated into the Bill. 
Amendment agreed to.
 Amendments made: No. 279, page 94, line 38, leave out from ''to be'' to the end of line 42 and insert
'varied or revoked, the authority shall—
(a) vary or revoke the order as requested in the application, if it is satisfied that it is appropriate to do so because of any change of circumstance, and
(b) in any other case, refuse to do so.'.
 No. 280, in page 94, line 43, after 'The', insert 'variation or'. 
 No. 281, in page 94, line 44, leave out 'the revocation' and insert 'it'.—[Mr. Timms.] 
 Clause 161, as amended, ordered to stand part of the Bill.

Clause 162 - Appeals

Amendment made: No. 282, in page 95, line 13, after 'to', insert 'vary or'.—[Mr. Timms.] 
 Question proposed, That the clause, as amended, stand part of the Bill.

Andrew Turner: Will the Under-Secretary explain why a tribunal under the Protection of Children Act 1999 is the best tribunal to consider issues that relate to the delivery of the curriculum at school? I am sure that other issues are appropriate to a tribunal under the 1999 Act, but I think that other tribunals are more suitable to consider issues that relate to the curriculum.

Ivan Lewis: The existing system is not working in a desirable way. The existing tribunal, which I think is known as an independent schools tribunal, is regarded as slow and laborious. A tribunal under the 1999 Act is a standing tribunal, not an ad hoc structure, and has the expertise to consider the relevant issues. It is clear that the tribunal must have regard to all the relevant factors in an appeal case, but there is the expertise in that structure to consider any appeals by the independent sector professionally and objectively.
 In considering an appeal by an independent school that relates to issues outside the new tribunal's experience or jurisdiction, it is essential that it deploy as members people with the relevant professional expertise. I understand and acknowledge the hon. Gentleman's concerns, but we are talking about a standing tribunal that has shown that it works well. In the few cases in which such a tribunal is required to consider curriculum issues outside the expertise of the people who ordinarily serve on it, it will be expected to deploy individuals with the relevant professional expertise. 
 Question put and agreed to. 
 Clause 162, as amended, ordered to stand part of the Bill.

Clause 163 - Determination of appeals

Amendment made: No. 283, in page 96, leave out lines 19 to 25 and insert— 
'(7) In the case of an appeal against a refusal under section 161(10) to vary or revoke an order under section 161(8), the tribunal may—
(a) uphold the refusal, or
(b) if in any case it is satisfied that it is appropriate to do so because of any change of circumstance after the making of the order—
(i) vary the order in such manner as it thinks fit, or
(ii) revoke the order.'—[Mr. Lewis.]
 Clause 163, as amended, ordered to stand part of the Bill. 
 Clauses 164 to 170 ordered to stand part of the Bill. 
 Further consideration adjourned.—[Mr. Heppell.] 
 Adjourned accordingly at seventeen minutes to Six o'clock till Thursday 24 January at half-past Nine o'clock.